An essential element of estate planning is to make your health care wishes clear and legally enforceable. The most basic method for accomplishing this task is to execute an Advance Health Care Directive (“AHCD”) that features two key components.
First, an AHCD allows you to name a health care agent who is empowered to make health care decisions on your behalf should you become mentally incapacitated. It’s a good idea to also name at least one or two alternate agents in case the first person named is for any reason unable or unwilling to act as your health care agent.
Second, an AHCD allows you to express guidelines as to how your agent should make health care decisions on your behalf. Often referred to as a “living will,” you are able to express directions in a variety of scenarios such as treatment for the alleviation of pain and end of life decisions with respect to the continuance or cessation of artificial life support. If you want more detailed legally enforceable orders with respect to your health care wishes, as well as executing an AHCD, you might decide to execute a Physician Order for Life Sustaining Treatment form (“POLST”). The POLST must be signed by a physician in order to be effective.
In addition to an AHCD and possibly a POLST, it is essential to execute a “HIPAA Waiver,” authorizing health care providers to disclose your otherwise protected private health information to your health care agents and other parties who might need access to that information in order to carry out their duties on your behalf in the event of your incapacity.
Not only do these documents ensure that your wishes are carried out to the greatest extent possible, but having a clearly articulated plan with designated decision-makers often lessens the burden placed on the family in making these serious and often painful decisions. However, there is one more important aspect to comprehensive health care planning that we can learn – not from an attorney or a physician – but from the legendary comedian, Joan Rivers.
Joan Rivers died earlier this month at the age of at the age of 81. Her only daughter, Melissa Rivers, had to make the heart-wrenching decision to withdraw artificial life support after she went into cardiac arrest following a surgical procedure. In the aftermath of her death, a video clip surfaced from an episode of the reality program, Joan & Melissa, from 2012 when Joan was about to have an earlier surgery. In the touching clip, Joan says to her daughter: “If anything happens, Melissa, I’ve had a great life. If I died this morning, nobody would say ‘so young.’ I’ve had an amazing life, if it ended right now – amazing life!”
While it is never an easy decision to withdraw artificial life support for a loved one, one can only assume that conversations such as the one that Joan had with Melissa give the health care agent permission to make such a decision, reduce the guilt the agent experiences, and even nudge the agent into making the decision that you would want.
So many of the examples I use to illustrate the importance of properly drafted estate planning center upon mistakes of the rich and famous. In this case, Joan Rivers gives us an example of how to do things right. Not only is it essential to have the proper legal documents in place, but it is also important to have personal conversations with your agents. While it might appear to be an uncomfortable topic, Joan Rivers’ example demonstrates that such conversations do not have to be sophisticated or lengthy. In fact, a few simple words can have immeasurable value.
KRASA LAW is located at 704-D Forest Avenue, PG, and Kyle may be reached at 831-920-0205831-920-0205.
This article is for general information only. Reading this article does not establish an attorney/client relationship. Before acting on any of the information presented in this article, it is essential to consult with a qualified attorney who is licensed to practice law in your community.